Albert v Albert
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MILLETT,SIR RALPH GIBSON,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 11 January 1995 |
| Neutral Citation | [1995] EWCA Civ J0111-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 94/0828/F |
| Date | 11 January 1995 |
Ancillary relief – Husband adjudged bankrupt – Application by wife for periodical payments – Whether trustee in bankruptcy could be joined as a party to the proceedings – RSC Ord 15, r 6(2)(b)(ii).
The parties were divorced in 1991. In 1993 the husband was adjudged bankrupt. Subsequently the wife applied in divorce proceedings for ancillary relief. Shortly before the hearing the trustee in bankruptcy applied to stay the wife’s application or alternatively to be joined as a party. On the morning of the hearing it became clear to the trustee that it was accepted by the wife that the judge would have no jurisdiction to make any order which would deprive the trustee of any of the bankrupt’s assets vested in him. Despite that the trustee persisted in his application. He had made no application under s 310 of the Insolvency Act 1986 for an income payments order. The judge refused the trustee’s application for a stay on the ground that he could not be prejudiced by any capital order but acceded to his application to be joined as an additional
respondent holding that the terms of RSC Ord 15, r 6 were sufficiently wide to enable him to be joined as he had a legitimate interest in the amount of any periodical payments awarded to the wife. The bankrupt appealed.
Held – The trustee in bankruptcy could not be joined as a party in ancillary relief proceedings against the bankrupt under RSC Ord 15, r 6(2)(b)(ii) since the Family Division and the Insolvency Court did not share common issues or questions which ought, as a matter of justice or convenience, to be determined by the Family Division. Whilst the Family Division had to ascertain the amount of the bankrupt’s income as best it could on the evidence before it, it was only concerned to decide how much of that income should be made available to maintain the wife and any children. It was not concerned with dividing it between the creditors, the bankrupt and the spouse and in any event the amount of the income would be affected by any order that the Insolvency Court had made, or might subsequently make, which had the effect of diverting the bankrupt’s income in or towards payment of his creditors. There had accordingly been a misconception on the part of the trustee. Since there was no jurisdiction to order the trustee to be joined to the wife’s application as he had not even considered whether to make an application for an income payments order and there was no possible issue as to capital, and he failed to identify in his evidence any question or issue in the wife’s application for ancillary relief which it was just and convenient to determine as between either
of the parties to the proceedings and himself, it followed that the appeal would be allowed.
Case referred to in judgmentHolliday (a bankrupt), Re, ex p Trustee of the Property of the Bankrupt v Holliday [1981] Ch 405, [1980] 3 All ER 385, [1981] 2 WLR 996, CA.
AppealThe bankrupt, Mark David Albert, appealed with leave from part of the order of Wall J made on 25 May 1995, whereby in ancillary relief proceedings brought by his former wife, Judith Monica Albert, he acceded to the application by the trustee in bankruptcy, George Albert Auger, to be joined as an additional respondent to the wife’s application for periodical payments on the ground that the trustee had a ‘legitimate interest’ in the amount of such payments. The facts are set out in the judgment of Millett LJ.
The wife did not appear.
Martin Pointer (instructed by Rutter & Co) for the bankrupt.
Zia Bhaloo (instructed by Wilde Sapte) for the trustee in bankruptcy.
MILLETT LJ(giving the first judgment at the invitation of Butler-Sloss LJ). This is an appeal brought with the leave of the judge by Mark David Albert, an undischarged bankrupt, whom I will call ‘the...
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